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Jjun/^''^^ ^"^ cx^i^ 



IN THE CASE OF THE SHIP VICTORY. 



In the matter of the Cargo of the Ship"^ Before the Commissioners to carry into 
Victory, Martha Murray, Adm. et. > effect the Treaty with France of 
al. claimants. . j July 4, 1831. 

Gentlemen: Having received since the last session of the Board, the 
Memorial presented to tlie French Council of Prizes in the above case, I 
beg leave to lay it before you. Besides an able argument, it furnishes 
new testimony by reference to documents before the Council of Prizes, 
which it has not been possible to obtain; we therefore, respectfully request 
the Board to review their decision in the case. 

It is understood that this claim has been rejected on two grounds. 

1st. Because the Victory came directly from England, and 

2dly. Because the Captain had made a false declaration respecting it. 

That the application of the remarks which I intend respectfully to 
submit to the Board, may be distinctly seen, it is necessary to recall to its 
attention the facts of tlie case. Tliey appear, from the documents hereto- 
fore and now filed, and the report of a case in 7 Johnson, page 449, herein 
leferred to, to have been as follows: 

In the month of July, 1807, John B. Murray shipped at New York, on 
board the ship Victory, of Portsmouth, New Hampshire, Caleb Hopkins 
master, 896 bags of Sugar, destined for Cherbourg, in France, and 
consigned to the w idow Homberg, Homb erg. Brothers & Co. Robert Murray, 
a native citizen, being interested to the amount of one-third part of said 
shipment. 

The ship sailed the latter part of the month abovcmentioned — was 
visited by sundry English ships of war, and allowed to continue on her 
route till the 30th of August, 1806, when she was boarded by an English 
armed privateer, the Lord Cochrane, which took possession of her papers, 
and conducted her to the outer roads of Plymouth, where the privateer be- 
longed. The papers were sent by the captain of the privateer into Ply- 
mouth for examination; where, being found regular, they were delivered to 
the American Consul, who sent them on board the Admiral commanding 
in the roads, to be delivered to captain Hopkins. Captain Hopkins, anxious 
to get them, took his boat and went on board the Admiral, to obtain per- 
mission to goon shore for them: but finding them already there, he returned 



2 *^\^'<^ 

to his ship without laniling; and after a detention of a few hours only, 
])roceeded on his voyage to Cherbourg, the roads of whicli he reached on 
the 1st of September. 

He was here visited by a boat from the custom-house, and anotlier be- 
longing to the police. Upon examination by them, he communicated fully 
the circumstances of his being compelled to go into the road of Plymoutii. 
By direction of the pilot, he then went on board the frigate on the station, 
where a conversation took place between him and the commander; but as 
he was ignorant of the French language, and there was no interpreter 
present, he understood very little of what was said. He heard of no ques- 
tion as to his having been in England, or having been visited by the British . 
The Ensign of the Frigate presented to him a paper in French, wliich he 
did not understand, and which was not translated or explained to him, but 
was represented to be a paper which it was necessary for him to sign, be- 
fore the ship could be permitted to go up to the town. This paper is 
filed amongst the proofs in this case. 

It is translated as follows: 

" I, the undersigned Caleb Hopkins, Captain of the American ship Vic- 
tory, of the burden of 186 tons, coming from New York witli a cargo of 
sugar, logwood, and pot ash, declare and affirm, that I do not come directly 
either from England or the English Colonies — that I have not been there since 
the 2,1st JS^ovember, 1806; that there is no subjectofEngland on board the said 
ship; and that M. de Belloche, Ensign of the vessel, has notified me of tiic 
3d, 7th, and 8th articles, of the said imperial decree." 

Duplicate made in theharborof Cherbourg, September 2, 1807, at 5 o'- 
clock, P. M. 

(Signed,) CALEB HOPKINS. 

But the fact was, that the captain, at the time he went on board the 
French frigate, was in a state of intoxication, which would have prevented 
his understanding the import of the pap*er he signed, if he had understood 
the French language. This was made known to the French Council of 
Prizes by the certificate of the Officers of the Watcn. Their certificate was 
filed in the Court of Prizes, and the Court was referred to it in the me- 
morial now laid before you. There appears to have been no sworn inter- 
preter, as required by the regulations of the Frencli Navy. 

The very next day, (the 3d of September,) on occasion of a visit from 
the police officers to his vessel, and Hie day after, when he went to the 
custom-house to make an entry of liis vessel, and get a permit to land his 
cargo, the captain again informed both sets of officers that he was visited 
in the channel by several English men-of-war; and especially on Sunday, 
the 30th of August, by the brig of war Lord Cochrane, who took posses- 



sion of his papers, and ordered him to follow to the outer roads of Ply- 
mouth, when he dropped anchor for six hours; and then having ohtained 
repossession of his papers, Ije continued his voyage to Cherbourg. 

The captain in his protest (marked ) expressly says, that when the 
custom-house officers came on board, he "declared that he had been forced 
into Carset (Catwater) Bay," (iu the outer roads of Plymouth;^ *'they 
informed him that it was of no consequence, and assisted in getting the 
ship into dock;" and on tlie 4th, himself and the mate entered the ship; 
tliat on or about the 5th, permits were granted to discharge the cargo; 
but that the weather being stormy, they did not commence unlading till 
the rth or 8th following; when, after having landed part of the sugars, the 
officers of the Government came on board, and seized the vessel and cargo, 
and, as he understood, under the decree of the 21st November, 1806; but 
they still insisted to him, that it was only a matter of form that the decree 
was then put in force, and at the same time ordered them to continue 
landing the cargo; that they took the sliip's log-book and all the papers 
belonging to the vessel, and left him in a very distressed situation. 

The above statement of facts is sustained not only by the documents here- 
tofore filed, and by tlie memorial presented to the French Council of Prizes, 
now laid before your Board, but by tlie positive testimony of Captain Hop- 
kins himself, who testified as a witness in a suit, brought by Mumford 
against the Piicenix Insurance Company, on a policy on another part of the 
cargo of the Ship Victory, reported in 7th Johnson's Reports, pages 453, 
454; and also by a deposition of a witness, taken in Cherbourg, under a 
commission, which was read in the same case, which stated, *' tiiat the 
Captain of the Victory signed a paper on board of the Stationare, a guard- 
ship, in the road of Cherbourg, declaring, that the Victory did not come 
directly from England, or an English colony — that the paper was in the 
Frencli language, and was signed by tlje Captain, without any previous in- 
terpretation — and that the officer «£ the guard-ship observed, that it was a 
formality merely to announce the arrival of the Ship Victory, and the na- 
ture of the cargo. 

The seventh and eighth are the only articles of the Berlin decree, which 
it is pretended, even by the French Council of Prizes, have been violated.^ 

These articles are as follows : 

7. No vessel, coming directly from England, or the English coloniesy 
or having been there since the publication of the present decree, shall b& 
received into any port. 

8. Every vessel contravening the above clause by means of a talse de- 
claration, shall be seized, and vessel and cargo confiscated, as if they were 
English property. 



Such arc the facts of the case, and the two articles of the Berlin decree, 
which are alleged to have heen violated. We feel confident, after a full 
examination of the documents heretofore filed, and now presented to the 
Board, that the Commissioners will he satisfied of the correctness of the 
ahove statement; and that neither of those articles of the Berlin decree 
has heen violated, and consequently, that an award must he made in favor 
of the claimants. 

It is respectfully submitted, that an American tribunal, in applying the 
decrees of the French Government, whicli were injurious to our commerce, 
will not give them a more extended operation than the French tribunals, which 
have pronounced the condemnations, for which our Government has claim- 
ed indemnity. It will be perceived, by a reference to the decision of the 
Council of Prizes in Paris, that that tribunal condemns the ship Victory 
and her cargo, for a violation of the 8th article only, of the Berlin Decree. 

If, disregarding the grounds of condemnation assumed by the French 
Council of Prizes, this Board shall deem it proper to consider the construc- 
tion of the Decree open, and to decide against a claim upon other grounds 
than those upon which the property condemned has been claimed, then it 
is necessary for us to look to the terms of the article, a violation of m hich 
has been intimated to be a sufficient reason for a rejection, to see whether 
those terms will embrace the case. We claim indemnity for the conjiscation 
of the cargo of the Victory. Is confiscation the penalty denounced for 
a violation of the 7th article? The words of the article are, "no vessel 
coming directly from England, or the English Colonies, or having been 
there since the publication of the present Decree, shall be received in any 
port." The penalty then of a violation of this article is, that the vessel 
violating it, shall not be received — not confiscation of the cargo. Even, then, 
if it were admitted, that this article had been violated, and this Board should 
deem it proper to go beyond the French tribunal, and take grounds which 
that tribunal has not thought tenable, ft>r the condemnation of American 
property, still this Board could not reject a claim for indemnity for a con- 
fiscation — a penalty which the article assumed to be violated, does not im- 
pose. 

It is believed, however, that the spirit of the 7th article has not been 
violated: certain it is, that custom-house officers at Cherbourg, who were 
informed of all the circumstances of the detention of the Victory in Ply- 
mouth roads, did not so consider it, or they would not have admitted the 
ship to an entry. The view they took of the subject, was probably this: 
That the object of the French Government, in issuing the Decree, was to in- 
jure England, not neutrals, by cutting off all commerce between England 
and France. When it denounces the penalty of turning off neutral vessels 



from the French ports, wliicli haA'e come direct from England, It is to pre- 
vent English commerce, nnder neutral flags, or the carrying on of trade 
in merchandise of British origin hy neutrals. The \cvy idea of trade 
with a country involves the further idea, that the appi-oach and entry into 
ports for that purpose, are voluntary — that the regular formalities are ob- 
served, which are usual for foreign vessels on sucli occasions, and that 
similar formalities are to be complied with on their departure. It implies 
further, that the owners, captains, or supercai'gocs of sucli vessels, go 
ashore, and have intercourse with the people of the port, which the vessel 
has voluntarly entered. In this case, the ajjproacli to England was in- 
voluntary. Captain Hopkins being on the direct route to Cherbourg, the 
place of his destination, when he was compelled by suj)erior force to 
follow the English privateer into the outer roads of Plymouth, an o])en 
roadstead, and scarcely distinguishable from the British channel. There 
was no entry into the port of Plymouth for the purposes of trade; no appli- 
cation to the custom-house; no communication with the people, except for 
the purpose of getting back the papers of the vessel, and pursuing the 
regular route to France. The police and the custom-house officers, all ©f 
whom weie acquainted with these facts, very naturally and very justly con- 
cluded that they did not amount to a violation of the 7tli at'ticleof the Berlin 
decree: and therefore, instead of turning off Captain Hopkins from the 
port, (as directed by that article, in the case of a violation of it,) they verv 
justly and properly admitted him to an entry, and gave permission to land 
the cargo; and when they came to this conclusion, they probably were 
under the impression that the captain, as stated in the log-book, which had 
been examined, had actually been on shore for his papers, which they no 
doubt deemed lawful for such a purpose. Whereas, although the captain 
left his ship with a view to go ashore, and the mate made the entry on the 
log-book accordingly, that he had gone ashore, yet, in point of fact, he did 
not go ashore at all, as he found all his papers had been sent back from 
Plymouth, with a certificate from the American Consul that they were all 
regular, to the ship of the Admiral of the Port, then lying in this open road- 
stead; on board of which he went to obtain permission to go ashore, but did 
not ask it after he had obtained his papers and had leave to proceed on his 
voyage, but went back to his own vessel, and immediately set sail for 
Cherbourg, and arrived there the next day. The log-book, however, not 
having been corrected when the police and custom-house ofticers examined 
it, they admitted the captain to an entry, though they supposed he had been 
ashore for a lawful purpose, disconnected with commerce. But as he did 
not go ashore at all, the case is much stronger in his favor than the French 
Grovernment oflicers supposed when they pronounced, by an admission to an 



entry, that there had hecti no violation of the 7th article of the Berlin 
Decree. 

In point of fact then, there was no violation of the letter even of the 
decree, as a person cannot he said either to have been in England, or to 
come from it, who has not been asliorc, or in tlie country at all — and in 
principle, there is no dilference between t!ie visit of the commander of the 
Lord Cochran, and the other British men of war in the Channel, and 
Captain Ho])kins might with as much justice be punished for a violation 
of the 7th article of the decree, because lie had been detained by a British 
man of war in the Channel, as in the open roadstead before the Plymouth 
harbor, he not having been ashore in either case. We have, moreover, 
high French authority for saying, tiiat an involuntary entry under superior 
force, even into a port ',)f England, is not such an enti'y as would make the 
sailing of the vessel afterwards to a French port a violation of the Berlin 
Decree. I allude to the report rtf t!ie Conunittee of the French Chambers 
on the American claims, composed of members of both branches of their 
Legislatuie published in the Giobe newspaper of the 6th of November, 
1835. That committee, under tiie head ofthefirst class ofthe third category 
of vessels seized, says, w hen speaking of the cargoes seized at Antwerp, 
" The vessels which bi'ought these cargoes had been forced to put into 
English ports. This was declared by their Captains. Did this compul- 
sory entry constitute a violation of the fictitious blockade established by 
the Berlin decree on all the British islands? And was confiscation the 
proper consequence? According to the laws of nations, this cannot be 
pretended." 



"We noNv proceed to the secoi.d division of the subject, to show, that as 
there has been no violation of the 7th article of the Berlin decree in the 
letter or spirit, so Captain Hopkins has not, by a false decleration respect- 
ing it, committed a violation of the 8th article of that decree, which says, 
" Every vessel contravening the above clause by a false declaration, shall 
be seized, and ship and cargo be confiscated as if it were English property." 

It appears from the foregoing view, that Captain Hopkins had not viola- 
ted the spirit, nor even the letter ofthe 7th article; for he literally had not 
been in England, and therefore, if he had knowingly signed a declaration 
that he did not come from England, nor had been there since the 21st 
November, 1806, the declaration would have been true, and therefore no 
violation of the 8th article, which denoiujces the penalty of confiscatiore 
against a false declaration. 



Again: it is admitted by the French Council of Prizes, in tlieir decision, 
that in the Englisli translation of the seventh article of the decree, which 
it is said was shown to the captain, and which aU>iie he could understand, 
if he had been sober and collected, the words iuiplying that he had not 
been in England since the 2lst Novemher, 1806, were omitted. To the 
question, then, do you come fi-oni England, or the English colonies, what is 
the natural reply for captain Hopkins to make? It is "No: I come 
from New York;" for it is cei-tainly nats.ral that he should suppose that 
the question had reference to his voyage — and it is true that his voyage 
was from America, and not from England. 

If you should ask a gentleman of New York, wlio had stopped a few 
iiours, or even a few days, in Baltimore, on his journey, where do you come 
from? he would say, from New York; because the question naturally im- 
plies a reference to his place of residence — and not to a place on the I'oad 
wliere he had stopped a short time. Or if a master of a vessel from New 
York which had touched at Cadiz, on a voyage to Naples, should he be 
hailed in the Mediterranean, Whence come ye? What would be his answer? 
Certainly he would say, from New York, and not from Cadiz, where he 
had only touched on Ids way. Or, in tlie present case, suppose that captain 
Hopkins, after leaving the outer roads of Plymouth, ou his way to Cher- 
bourg, had been hailed by another English vessel, with tiie same question, 
M'hat would he have answered? He would have answered, Yew York, not 
Plymouth, because his voyage was from New York, and not fi'om Ply- 
mouth, and he would have a right to suppose the question related to the 
voyage, and not to his detention in a roadstead of England for a few hours. 
Taking the answer, then, to tlie question, iis the sense in which he would 
naturally understand it, captain Hopkins was guilty of no false declaration. 

Captain Hopkins, however, did not understand what he signed on board 
the French frigate at all. This he expiessly swears, when giving his 
testimony in the case above cited, of Mumford vs. Phoenix Insui-ance Com- 
pany. It was, moreover, in proof before the Council of Prizes, by the 
persons who, of all others, were best qualified to judge of his true situa- 
tion, that he was in a state of such intoxication when he went on board the 
frigate, that he was incapable of understanding the questions that were put to 
him, even in English. The persons putting those questions were not sworn in- 
terpreters, which are required on such occasions by a regulation of the French 
Navy; but the officers of the watch, and the officer of health, who probably did 
not themselves understand English well, but who acted as interpreters during 
the examination, and put the questions to him. Their certificate, duly 
authenticated and filed, with the papers which were before the Council of 
Prizes, was in the following words: 



*' We, Oiliccrs of the Wiitcli, on board the Frigate La Manche, and the 
Otluer of Health, having served as interpreters to captain Caleb Hopkins, 
of tlie American Ship Victory, certify that he appeared to us drunk or im- 
becile, wliilc undergoing the regular examination on board, which opinion 
we have formed from the difficulty he had in understanding the questions, 
and making the answers. In faith of which, we have signed the ])resent, 
to serve in case of need, near Cherbourg, September 13, 1807." 

In corroboration of this certificate, it appears, from the decision of the 
Council of Prizes, that when examined by the Government officers, after 
the vessel and cargo were seized, the Captain himself declared he did not 
understand tlie questions put to him, when he signed tiie declaration in 
French, on board the French frigate. 

But the proof strongest of all is derived from the fact that immediately 
before he went on board the French frigate, the captain had stated to the 
officers of the custom-house and tlie police who had come on board the 
Victory, that he had been forced by an English gun brig into Plymouth 
roads, and afterwards permitted to proceed. And again: on the two days 
following hir examination on board the frigate, before the same officers, 
that is, the police and custom-house officers who were to decide whether 
the vessel should be permitted to enter, he gave a distinct statement, in 
detail, of his detention by the English privateer; his being ordered into 
the outer road of Plymouth harbor; his detention there for a few hours; 
and afterwards sailing for Cherbourg. The proces verbal of these two 
examinations were filed among the proceedings of the Court of Prizes, 
and a knowledge of them recognized in the sentence of condemnation pro- 
nounced by that tribunal. 

The first of these examinations took place on the 3d of September, 
when the Commissary of Police came on board the Victory, when Captain 
Hopkins, without any reserve or concealment, stated to him that "after 
having been visited several times, he had been conducted b}^ the English 
privateer, the Lord Cochran, before the harbor of Plymouth, that his 
papers, after having been examained, were restored to him; and that he 
had continued his route to Cherbourg, the place of his destination." 

The second declaration of the captain w as made on the 4th of September, 
when he went to the custom-house to make entry of his ship, and get a 
permit to land his cargo. It was the custom-house officers, let it be 
remembered' who were to decide whether Captain Hopkins was entitled to 
enter his ship, or should be turned off for violating the 7th article of the 
Berlin decree. And towards these officers he practices no concealment 
whatever. The proces verbal of these officers, is in the following words; 
"To-day, Sept. 4, 1807, appeared in person Captain Caleb Hopkins, 



commanding the American ship Victory, who said," &c. &c., " that he was 
visited in the cliops of the channel hy several men of war, and especially 
on Sunday last, the 30th of the past month, hy the brig of war the Lord 
Cochran, which took possession of liis papers and ordered liim to follow. 
He went as far as the outer roads of Plymouth, and there dropped anchor 
for six hours, and having obtained a re-possession of his papers, set sail 
and contiiuied his voyage to Cherbourg." 

Now, gentlemen, after reading tliese statements, can this Board believe 
that Captain Hopkins /i;?iowit^'"/?/ signed a paper denying the fact he volunta- 
rily stated before he went on board the French frigate, and twice afterwards 
in t!ie course of the two following days? A falsehood is an intentional 
mis-statement of facts. Tlie object is to deceive. Could that have been 
Captain Hopkins' object in signing the declaration on board the frigate, 
when, on the day before, and on both the next day, and the day after, he 
details the whole truth, and states all the facts of the case to the very 
officers, on w liom depended his admission to entry, and who w ere in daily 
communication with the officers of the frigate? This is utterly incredible; 
and the inference is irresistible, that Captain Hopkins, either from ignorance 
of the French language, or from intoxication, did not understand the paper 
that was given him to sign; that he considered the declaration that he had 
not come directly from England as true, his voyage having been from New 
York, and he not having, in })oi«t of fact, been in England. He has been 
guilty of no false declaration, then, within the meaning of the 8th article 
of the decree under which his vessel and cargo were confiscated: for the 
very term false implies a conscious violation of truth. 

Let me present another view to the Board: 

The Victory was condemned under the 8th Article of the Berlin drecree, 
and not under the rth. But the condemnation under the former article 
proceeds on the idea, that there had been a violation of the latter. 

The rth Aiticle provides, that a vessel which should appear on an exam- 
ination of the proper officers to have come directly from England, or the 
Englisii Colonics, or to have been there since the date of the decree, should 
not be received into any port. 

The 8th Article provides, that, if by means of a false declaration any 
vessel should contravene the provisions of the 7th Article, that is, should 
gain admittance into a French port by the Captain's declaring that he had 
not come from England, when, in fact, he had, the vessel and cargo should 
be confiscated, as if it were English property. 

The seizure and condemnation then, in this case, were upon the ground 
that the vessel had come directly from England, and that the facts, as dis- 
closed by the Captain, were, within the spirit and meaning of the 7th Arti- 



10 



cle, a violation of it and that the Captain had obtained admission into port by 
falsely declaring that he had not come from England. 

It is respectfully submitted, that it has been clearly shown by the fore- 
going argument, that the Victory did not come from England, within the 
meaning and spirit of tlie 7th Article. If she did come within it, it could 
do so only on the ground, that punishment is to be inflicted on an involuntary 
act imder the pressure of superior force: and if this be the spirit of the 
article, then the decree w^as a violation of every principal of all law — na- 
tional and municipal. It will not be pretended by any one, tbat the Berlin 
decree is consistent with the laws of nations, except only so far as it may 
operate as a municipal regulation. But, wlien an act is prohibited by any 
statute or ordinance, and a penalty is annexed to a commission of the act, 
it is always supposed that it is a voluntary act; that the person who per- 
forms it is a/ree agent. If a superior force compels him to do it, it is not 
his act, and he cannot be responsible for it. 

Suppose, in this case, the Victory had been driven into the outer roads of 
Plymouth by a storm — would that have been a visiting of England, or a 
putting into an English port, within the meaning of the decree? If it would 
not, neither can a detention by superior force be. 

Now wiiatever municipal regulations the Frencli Government had a 
right to make respecting the admission of neutral vessels into its ports, it 
had no right to confiscate them for the misfortune of having been met and 
detained under superior force, while on their way to the ports of their ori- 
ginal destination. Such a law, in plain tcvms, would be too outrageous 
even to be proposed; and yet it is not more outrageous than the construc- 
tion which was put upon the decree by the French authorities in this case. 
And this Board must put the same construction on it, and fly in the face 
of the subsequent dispassionate opinion of the joint committee of the French 
Chambers, and must decide it to be a \Si\k\ municipal regulation as con- 
strued above, before it can reject the claim in this case. 

If the 7th article of the decree is to be construed like all other laws, then 
the declaration of the captain was true within the meaning and spirit 
of the article, and the vessel was unjustly condemned. — If a different con- 
struction is to be put upon it, and a detention by superior force, or being 
driven by a tempest into an English harbour are to be deemed violations 
of it, equally with a voluntary stopping or trading, then the decree is such 
a manifest violation of every principle of justice and right that it cannot 
be sustained by an American tribunal, and especially against our own 
citizens. 

Chiet Justice Kent, in the above cause, [Mumford vs. The Phenix In- 
surance Company,] with all the testimony of this case before him, says, 



11 

"the ground of condemnation was proved upon tlie trial of this cause, to 
be untrne and unjust, and it was a charge exceedingly improbable in itself, 
considering the circumstances at the time." 

If we would seek for the true cause of the seizure of the Victory and 
her cargo, we shall not find it in a violation of the Berlin decree fairly 
construed, still less upon the construction of it given by the French gov- 
ernment to our Minister, but in a letter of the Counsellor of State, 
the Director General of the Customs, mentioned in the sentence of Court 
of Prizes. This letter was received at Cherbourg, after the Victory had 
been admitted to entry, a permit granted for unloading, and more than half 
the cargo actually landed, on the 7th September, and immediately after- 
wards a guard took possession of the vessel, and the next day an examina- 
tion was held on board, and although the frankest declaration of all the facts 
was made by the Captain before the Custom House Officers, prior to being 
admitted to entry — and although that declaration was found to be no obsta- 
cle to his entry— yet it was this declaration, which, after the receipt of this 
letter from Paris, from the Director General of the Customs, was made a pre- 
text for seizing the vessel and cargo, and the proces verbal, being trans- 
mitted to the Counsellor of State, his letter in return was received on the 
20th of September, and the seiziire confirmed. It was understood as an 
arbitrary mandate for the seizuie of neutral property — and so acted on. 
That letter, referred to in the sentence of the Court of Prizes, not only says 
that liis majesty had decided that the 7th & 8th articles of the Berlin de- 
cree should be rigorously executed, but that it should be extended farther 
and not only vessels, which had touched at an English port, which term 
necessarily implies voluntarij access to such port, but vessels which had 
been carried into an English port should be considered as within the decree. 
Immediately after the Berlin decree was issued, General Armstrong, our 
Minister, had been assured by tlic French Government, that the Barlin de- 
cree ' ^made no modification of the regulations then observed in France 
with regard to neutral navigators, nor consequently of the convention of 
the 30th Sept. 1800, with the United States of America,"* and accordingly 
it was not enforced against American vessels, until the 8th of September 
1807, when the Victory was seized and became the first victim to 
the arbitrary order of the Director General of the Customs, received 
the day previous, which not only decided a rigorous execution of the 7th 
and 8tli articles of the Berlin decree, but extended their operation to cases 
of vessels carried into a port of England, directly and notoriously in vio- 
lation of the laws of nations. 



*Vi(.le Waits' American State Papers, Vol. 7, page 477. 



12 

Wo confidently trnst, then, that, under the circumstances of tliis case, as 
they now appear, that the Board will, on a review, make an award in 
favor of the memorialists, especially when they consider that a rejection of 
the claim now presented, will fall witii aggravated weight on innocent 
shippers, for the imprudence of a captain; over whose appointment or con- 
duct they had no control. 



Having established, as we conceive, that there was in this case, no viola- 
tion of the Berlin decree, and that the seizure and coademnation of the ship 
and cargo were in violation of the laws of nations, and. as a consequence, that 
the memorialists are entitled to indemnity, we proceed to consider the rule, 
which ought to he observed in ascertaining the amount which ouglit to be 

awarded. 

This Board is bound to decide what is due, from the French Government 

according to justice, equity, and the laws of Nations. All these principles 

require, that the rule of indemnity should be the amount of damages, actually 

sustained. To ascertain this, is frequently a matter of great difficulty, if not 

impossible. This, however, will be the aim of this Board in all cases, and the 

means adopted, which are deemed best, to arrive at it. Hence, where the 

capture has been at sea, or the property destroyed before reaching the port of 

destination, the invoice at the port ofshipment is considered the best evidence 

of its value, and is therefore adopted: but it is presumed, that a different 

rule will be adopted, where the voyage has termitiated, the goods landed, 

and their value exactly ascertained by a sale. 

Such were the facts in this case, The Victory had arrived at the port 
of destination — Cherbourg; and had been admitted to entry : the sugars, 
for the loss of which this memorial has been prepared, were landed under 
a permit from the custom-house — and deposited under the key of the cus- 
tom-house, in the store or warehouse of the consignees, — the Widow Hom- 
berg, and Homberg, Brothers & Co. They were afterwards confiscated 
under a decree of the Council of Prizes about eight months after the seizure, 
and were sold by the custom-house officers on the 27tli June, 1808, and 
the proceeds placed in the Public Treasury. The amount of these sales 
was, after deducting freight and expenses, £82,518 francs, or S53,813. 
And this is the sum to which we claim that the memorialists are entitled. 

This Board, we contend, is bound to award whatever sum the French 
Government, according to the principles of justice, equit), and the law of 
Nations, were \)ound to pay. They are therefore to inquire into, and to 
decide upon, tlie wrongs done by the French Govei-nment to American 
citizens, and the damage consequent to those wrongs; and, as the princi- 
ples of justice are immutable and applicable to all moral agents, the same 
rule must obtain, whether the wrong doer be a sovereign power, '>»• " ^^ 



IS 

vate individual, — and what would be the rule of damages, if the goods in 
question had been wrongfully withheld from tlic memorialists by an indi- 
vidual? Unquestionably, the actual value of the goods at the time they 
were appropriated to the use of that individual. In such a case, the jury 
would not inquire into the cost of the goods, including the invoice price 
and charges; but the price of them, where they were wrongfully taken from 
their owner. If the goods came from England, but the possession of tliem 
had been fraudulently obtained from the owner; or, if they came lawfully 
into the possession of the holder, but were wrongfully detained from the 
owner in New York, and he had resorted to his action for damages, thejury 
would not inquire into the costof the goods when purchased in England, and 
the cost of transportation, but what they would sell foi* in New York at the 
time they were converted to the use of the holder, — nv, if sold faii-ly, tiie 
amount of the sales, and having found this, they would give a verdict ac- 
cordingly. 

Apply the same rule of judging to the French Government in this case. 
That Government, in violation of the law of Nations, has seized our pro- 
perty, — has condemned it against equity and good conscience, and the law 
of Nations, — lias sold it, and caused the ]n*ice to be deposited in its trea- 
sury. The principles of justice, equity, and the law of Nations, require 
that we should be indemnified. Now, what would be the indemnity? Pre- 
cisely the value of the goods at the time and place at which we have been 
deprived of them. The goods were worth what they sold for. I'he money 
received for them belongs to us, — the French Government have received 
the money and made use of it, and are bound to repay it, — can there be a 
doubt that we cannot be indemnified by a less sum, than the actual amount 
of money proceeding from the sales of our propei-ty, and placed in the 
French Treasury? 

It may be that, according to justice, equity, and the law of Nations, 
the French Government may be bound to pay us more money than they 
have received for our property, because they may have been sold for less 
than their value, or other wrong may have been committed; but it cer- 
tainly cannot discharge its debt by a less sum. If our ])roperty has sold 
for more than tlie invoice value at the port of sliipment, with the charo-es 
added, it is not competent to the Government, which has ordered its sale, 
to say: I will pay you the cost and charges, and pocket the surplus; in 
other words, appropriate to my own use the fruits of your enterprize and 
risk: for neither individuals or governments can lawfully make a profit 
out of their own wrongs. If this should be allowed, the strongest tempta- 
tion svould be held out for the perpetration of wrong. If such a principle 
were established, and a general seizure of American property should take 



14 

place in a foreign nation, according to this principle, when we demand in- 
demnification lor the outrage, we arc to be answered by tlie wrong doers, — 
"We acknowledge we have taken your property in violation of the law of 
Nations, — inform hs what your goods cost you in America, and the ex- 
pense of transporting them here, and we will pay the amount." Would an 
American negociator, seeking for indemnity on such an occasion, be satis- 
fied with such an answer, and yield all tlie profits of the trade, that has 
thus been violently interrupted, to the wrong doer? No, — he would indig- 
nantly say: "Pay our citizens the value of their property at the place and 
time that you have unjustly seized it, converted it to your use, and 
divested them of their rights. The justice our country is bound to secure 
to its citizens, requires this amount. By the same principles of justice, 
you are bound to pay it. It is inconsistent with our character and dignity 
to be content with less. Your character and dignity, the wrong being 
acknowledged, call on you to pay it." 

Were tlie ju'esent memorialists now making their claim for indemnity of 
the French Government for the w rong done them, they would have a right 
to demand the value of their property at the time they were wrongfully 
divested of it; though there would be no tril)unal before whicli they could 
enforce their demands. 

Taking this to be established, we will next enquire, at what period in 
the case under consideration were the memorialists divested of the proper- 
ty for which indemnity is now claimed? 

The Victory had arrived at Cherbourg; the necessary examinations were 
made by the police, and the custom house officers, and the sugars were ad- 
mitted to an entry, and a permit to land them granted. They were landed 
and deposited in the warehouse of the consignees. 

While they were thus being landed, and when more than half of them 
had been actually delivered, they were seized by the French authorities; 
and after the whole of them were landed and placed in the warehouse of the 
consignees, the lock of the custom house put upon it. 

No change of pro[)erty has yet taken place; nothing short of a decree of 
a judicial tribunal, recognized by the law of nations, is competent to divest 
the memorialists of their property. They take the necessary legal steps 
to assert their rights before the Council of Prizes, which, after considera- 
ble delay, pronounces a sentence of condemnation. It is this sentence which 
divests them of their title to the property. Until this moment their right 
continued; and it is at this moment, when the decree in violation of the law of 
nations is pronounced, divesting the memorialists of their property, that the 
value of that property is to be fixed, and the measure of compensation esta- 
blished. 



15 

In pursuance of the sentence of condemnation, the custom house officers 
cause a public sale to be made of the sugars. And it will be perceived from 
tlic statement of the account of sales filed amongst the proofs in this cause, 
and marked C, that the net proceeds of the sale amounted to 282,518 francs, 
or 853,813. This amount of money was paid into the French Treasury; 
it was the proceeds of the goods of the memorialists; the money in justice 
belonged to them, and was appropriated to the use of the French Govern- 
ment; and this being done in violation of the principles of justice, equity, 
and the laws of nations, it is this amount, which, if the claim were now 
urged directly against the Government of France, that government would 
be bound by the same principles to pay. 



The only inquiry then, that remains to be made is — Is the rule of in- 
demnity the same before this Boaid, as if the claim were now urged before 
a French tribunal, had one been established by that government to decide 
upon it? 

I respectfully but confidently submit that none but an affirmative answer 

an be made to this inquiry. 

The United States demand satisfaction of the French Government for 

rongs done our citizens under its authority. The French Government 

cknowledge those wrongs and their obligation to indemnify our citizens. 

t is agreed however between the two governments, that a gross sum shall 

e paid by that of France to tlie governments of the United States, to be 

|istributcd by a tribunal to be provided by them. That tribunal is this 

oard, which is directed by the law creating it, to examine all claims 

hich shall be presented under the Treaty of July 4, 1831, according to 

le provisions of that treaty and according to the principles of justice, 

uity, and the law of nations. Our citizens are now deprived by the act 

i their own government of the right they would otherwise have had to 

mand indemnity of the French government, and according to the Treaty 

^ July 4, 1831, they must now look for indemnity to the fund provided by 

j That fund stands in the place of the French government. Those who 

ire suffijred wrongs from France, must now look for indemnity, not to the 

^nch government, but to the fund provided by it, and every claimant to 

^tle himself to a portion of the fund must prove the debt due him by the 

Inch government— and when that is proved, an award in his favor must 

linade by this Board accordingly. 

t is well understood that the fund provided is not sufficient to discharge 
ilill all the debts due from the French government to our citizens. The 
J^rds however must be the same against the fund, that thev would have 



16 

been against the French government, and tliese awards are required by the 
j)rovisions of the law creating this Board, to be apportioned among the 
claimants. In looking over the law I can find no rules established by 
which the amounts of the awards are to be determined, but the principles 
of justice, equity and the law of nations — the same rules which would 
have governed the decisions of the French tribunal, if one had been con- 
stituted for making them. 

In this case the amount of our money which the French government has 
appropriated to its own use, was 282,518 francs, a ^53, 8 13. This is the 
debt due from France to the memorialists — and is the sum for which we 
contend an award must be made by this Board against the fund provided I 
by the Treaty. 

All which is respectfully submitted. 

V. MAXCY, 
of Counsel for Claimants. 



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